JUDGMENT
1. This appeal has been preferred by the plaintiff in a mortgage suit, disputing the decree of the Court below by which it awarded to the respondent, Ganga, a sum of Rs. 1,330, as payable to him in respect of certain prior mortgages alleged to have been discharged by him. The mortgage in favour of the plaintiff was executed by one Bhure on the 6th of March 1908. In 1896 a mortgage was made by Bhure's father in favour of the defendant, Ganga, for Rs. 125. In 4907 two usufructuary mortgages were executed by Bhure in favour of Jot Ram and Dan Sahai, one for Rs. 100 and the other for Rs,. 280. After this the mortgage in favour of the plaintiff was executed. In 1909 Bhure executed another mortgagee in favour, of Jot Ram and Ban Sana: for Rs. 450. This mortgage included the) amount of the mortgage for Rs. 280 executed in 1907 mentioned above. A further sum was taken by the mortgagor, but out of the additional amount borrowed Rs. 42 was left in the hands of Jot Ram and Dan Sahai, mortgagees, for the discharge of the mortgage in. favour of the plaintiff which is the mortgage now in suit. That amout was never paid. In 1910 Ganga brought suit on the basis of his mortgage of 1896 against the mortgagor Bhure and Jot Ram and Dan Sahai. He did not make the present plaintiff, whose mortgage was subsequent in date to the mortgage on the basis of which the suit was brought, a party to the suit. The suit of Ganga was compromised, and the result of the compromise was that Ganga admitted the mortgages held by Jot Ram and Dan Sahai for Rs. 100 and Rs. 450, to have priority over his mortgage of 1896 and it was provided in the decree that the mortgaged property was to be sold subject to the two mortgages for Rs. 100 and Rs. 450 mentioned above. This decree was never executed but in 1914 the mortgagor executed a sale-deed of the mortgaged property in favour of Ganga for Rs. 1,500. This amount of consideration was composed of Rs. 950 due upon the decree obtained by ganga in 1910, Rs. 450 the; amount of the usufructuary mortgage for Rs. 450 executed in favour of Jot Ram and Dan Sahai, and RS. 100 due to those persons under the first mortgage on 1907 executed in their favour. Ganga now claims priority over the plaintiff for the amount of the consideration for the sale in his favour on the ground that it represented the mortgages prior to the plaintiff's mortgage discharged by him. The lower Court has disallowed to him the Rs. 450 less Rs. 280 which was included in the aforesaid sum of Rs. 450 and it has held that Ganga has priority in respect of his mortgage of 1896 and in respect of the two mortgages for Rs. 100 and Rs. 280 held by Jot Ram and Dan Sahai. Thus making a total of Rs. 1,330.
2. Against this decree the present appeal has been preferred, and it is contended that Ganga has no priority over the plaintiff in respect of any of these amounts. Now we may take into consideration each of the mortgages which have been held to be prior to the mortgages in favour; of the plaintiff. As regards the mortgage of 1907 for Rs. 100 held by Jot Ram and Dan Sahai, that mortgage is prior in date to the plaintiff's mortgage and it having been discharged by Ganga, Ganga is entitled to priority in respect of that mortgage. As regards the mortgage or Rs. 280 executed iv 1907 in favour of Jot Ram and Dan Sahai, Ganga cannot, in our opinion, claim priority inasmuch as the amount of that mortgage was included in the mortgage of 1909 for Rs. 450, which was subsequent date to the mortgage of the plaintiff. Of, course, Jot Ram and Dan Sahai could have claimed priority for Rs. 280 included in the subsequent mortgage if it had been his intention to keep alive his priority in respect of this Rs. 280. But under the mortgage-deed in their favour they undertook to pay off the plaintiff's mortgage, and as they never paid off that money, they could not claim priority over the plaintiff in respect of the Rs. 280 which had been lent by them before the date of the mortgage executed in the plaintiff's favour. This was so held in the case of Muhammad, Sadig v. Ghaus Muhammad 7 Ind. Cas. 200 : 33 A. 101 : 7 A.L.J. 914 Therefore, Ganga is not entitled to priority in respect of the mortgage for Rs. 280.
3. NOW remains his own mortgage of 1896. As regards that mortgage there are two objections, the first is that under the compromise which took place between him and Jot Ram and Dan Sahai in the suit brought by him, he admitted the mortgage held by Jot Ram and Dan Sahai of the year 1909 to have priority over his own of 1896. If the mortgage of 1909 had priority over the mortgage of 1896; the mortgage of 1908 held by the plaintiff, has certainly priority over Ganga's mortgage; and on this ground Ganga caiatrbt claim priority in respect of his mortgage of 1896, Further-more, at the time when the sale-deed in favour of Ganga was executed the claim of Ganga under his mortgage of 1896 had ceased to be enforceable against the present plaintiff by reason of lapse of time. In the suit brought by Ganga in 1910 he stated in his plaint that his cause of action for the recovery of the money due to him accrued in October 1898. Therefore, in 1914., when the sale-deed in his favour was executed his right to enforce the mortgage as against the present plaintiff had become time-barred, and that mortgage, so far as the plaintiff was concerned, had become extinct. Therefore, a portion of the consideration for the sale in his favour, which represented Rs. 950, was a sum for which is remedy could be claimed as against the plaintiff and for which the plaintiff is his no sense responsible. Therefore, that portion of the consideration could not be enforced as against the plaintiff and Ganga cannot claim priority for that amount. The only sum for which he is entitled to priority is the sum of Rs. 100 to which we have already referred.
4. The result is, that we allow the appeal and modify the decree of the Court below in so far that out of the Rs. 1,330, declared by the Court below to be payable to Gangs declare that he is entitled to Rs. 100 only and that the decree in the plaintiff's favour will be subject to the plaintiff paying off the aforesaid sum of Rs. 100, to Ganga. The parties will pay and receive casts in all Court in proportion to failure and success, and the costs in this Court will include fees on the higher scale.